McLean, Hardy, Bennett and Henry, and Pacific Coast FM - 2007-098
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- Alison Henry
- June Bennett
- Murray McLean
- Shane Hardy
ProgrammePacific Coast FM interview
BroadcasterPacific Coast FM
Channel/StationPacific Coast FM
Complaint under section 8(1)(b) of the Broadcasting Act 1989
Pacific Coast FM – interview with Coromandel resident Bill Muir discussing local politics in Whitianga – during the item Mr Muir made a number of critical statements alleging serious misconduct by members of the local district council and community board – allegedly in breach of good taste and decency, balance, accuracy, fairness and social responsibility standards
Principle 5 (fairness) – item named people who were accused of unsubstantiated illegal activity – host did not challenge Mr Muir when he made the allegations – Mr Muir’s statements went beyond acceptable comment on political activity – unfair – upheld
Principle 4 (balance) – item discussed a controversial issue of public importance – broadcaster failed to make reasonable efforts to obtain other significant perspectives – upheld
Principle 6 (accuracy) – not within the Authority’s jurisdiction to determine allegations of criminal behaviour – decline to determine under section 11(b) of the Broadcasting Act 1989
Principle 1 (good taste and decency) – standard not relevant to complaint – not upheld
Principle 7 (social responsibility) – one aspect subsumed under Principle 5 – interview not electioneering – not upheld
Section 13(1)(a) – broadcast of a statement
Section 16(1) – payment of costs to the complainants of $900
This headnote does not form part of the decision.
 On 26 July 2007 at 9.30am, Pacific Coast FM broadcast an interview featuring Coromandel resident Bill Muir. During the item, Mr Muir made a number of statements alleging that some named members of the Mercury Bay Community Board and the Thames Coromandel District Council had acted inappropriately and dishonestly. The item was re-broadcast on 29 July 2007.
 Alan Henry (representing Murray McLean, Shane Hardy, June Bennett and Alison Henry) made a formal complaint to Pacific Coast FM (PCFM), the broadcaster, alleging that the item had breached standards of good taste and decency, accuracy, balance, fairness and social responsibility. The complainants were all members of the Mercury Bay Community Board (the Board).
 Mr Henry stated that the item contained “unchallenged accusations of unlawful and dishonest behaviour by the Mayor, the Chief Executive and members of the Community Board”.
 The complainant believed that the accusations made by Mr Muir during the item were not consistent with standards of good taste and decency, because they attacked the integrity of those he accused and the offices that they held.
 The complainant argued that the item was inaccurate because it did not distinguish between fact, opinion and comment. He considered that the statements contained in the item were based on Mr Muir’s personal opinion and that listeners could have misconstrued them as being facts, as they were unchallenged by the broadcaster.
 Mr Henry maintained that the item was unbalanced because the broadcaster had made “no attempt” to obtain or invite the presentation of alternative points of view to Mr Muir’s strongly worded opinions and assumptions. The complainant argued that the people named in the item were not aware that it was taking place until members of the public had contacted them about it. While the complainant noted that prior to the repeat broadcast the host had mentioned that anyone could present their opinions on the show, he did not believe that this could be regarded as an invitation to respond by those named. The item made no attempt to maintain journalistic balance and neutrality or to invite rebuttal of the accusations, he said.
 The complainant did not believe that the broadcaster had dealt fairly with the people referred to in the item. Mr Henry argued that the host had only intervened to encourage Mr Muir by saying things like, “local elections are not far away”, “there’s an election coming up” and “Exactly, it’s all about the money if nothing else”. He considered the act of accusing public figures of dishonesty and lying without any attempt at balance was unfair.
 Mr Henry argued that the item was socially irresponsible because it denigrated holders of public office. He pointed out that at the time, nominations for local body elections had opened and the item could have affected the public’s perception of the honesty and integrity of some of the candidates.
 The complainant maintained that the references to local elections and to the merit of one local candidate during the item were socially irresponsible and brought the item into the context of direct electioneering. If the item was to be used as an electioneering platform, this should have been made clear to listeners, he said.
 The following principles of the Radio Code of Broadcasting Practice are relevant to the determination of this complaint.
Principle 1 Good Taste and DecencyIn programmes and their presentation, broadcasters are required to maintain standards which are consistent with the observance of good taste and decency.
Principle 4 BalanceIn programmes and their presentation, broadcasters are required to maintain standards consistent with the principle that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.
Principle 5 FairnessIn programmes and their presentation, broadcasters are required to deal justly and fairly with any person taking part or referred to.
Principle 6 AccuracyIn the preparation and presentation of news and current affairs programmes, broadcasters are required to be truthful and accurate on points of fact.
Principle 7 Social ResponsibilityIn programmes and their presentation, broadcasters are required to be socially responsible.
Referral to the Authority
 Having received no response from PCFM, Mr Henry referred the complaint to the Authority under section 8(1)(b) of the Broadcasting Act 1989. He reiterated the arguments put forward in his original complaint.
Broadcaster’s Response to the Authority
 PCFM argued that the statements complained of were made by Mr Muir, not the station. The broadcaster maintained that “it could not be held responsible for Mr Muir’s opinions, no matter how assertive they may be”. It rejected Mr Henry’s claim that no effort was made to examine the truth and argued that the complainants had failed to exercise their right of reply. The broadcaster stated that “within 5 minutes of Mr Muir commencing, Mr McLean phoned in demanding to be given the right of reply”. The broadcaster said that it had made it clear to Mr McLean that it had “no problem with that” and suggested that he get back to PCFM when it was convenient for him. PCFM maintained that “at no point since” had Mr McLean made any contact with it, except to pick up a recording of the item. The broadcaster maintained that the interview had not breached standards of good taste and decency.
 PCFM believed that Ms Bennett’s name was not mentioned in the item and that Ms Henry’s name was only mentioned once. It questioned why, if Mr Henry believed that it was the Community Board which had been verbally “attacked” in the item, all the Board members were not included as complainants.
 In respect of accuracy, the broadcaster reiterated that the statements “whether fact, opinion or fabrication” were those of Mr Muir and that it was not in a position to check the accuracy of what he was saying. PCFM believed that it was up to Mr McLean or Mr Hardy to respond to Mr Muir’s accusations. It declined to uphold the accuracy complaint.
 With respect to balance, PCFM agreed with the complainant that the issues raised in the item were controversial matters of public importance. However, it argued that the host had remained “absolutely neutral” during the item because he did not express any opinions at all. The broadcaster believed that it had acted in a balanced manner because it had given an open invitation for anyone to call the station and voice their opinions. It also maintained that it had offered Mr McLean the opportunity to go on-air and rebut the statements made by Mr Muir, but this invitation had been declined. As a result, PCFM found no breach of the balance standard.
 The broadcaster argued that it had treated those named in the item fairly, because they could have called the station and would have been given an opportunity to respond to the statements made by Mr Muir. PCFM maintained that “any hurt they may feel, lies squarely at their feet”, and it declined to uphold the fairness complaint.
 PCFM maintained that it had been socially responsible, especially since it had invited Mr McLean to go on-air and tell listeners his side of the story. The broadcaster maintained that the complainant’s assertion that the comments contained in the item were made under the guise of electioneering advertising were unfounded. The broadcaster found that the item had not breached Principle 7.
Complainant’s Final Comment
 Mr Henry maintained that “no reasonable effort was made to achieve balanced reporting by the radio station”. He argued that the host’s statement that “his microphone was always open” did not constitute balance and reiterated that none of his clients “ever received an invitation from the radio station to present their views”.
 Mr Henry agreed that Mr Mclean had contacted the station during an earlier item, but argued that Mr Mclean was told by the host that “he was going to Auckland” and that the host had never contacted him again.
 The members of the Authority have listened to a recording of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.
Principle 5 (fairness)
 The fairness standard requires broadcasters to deal justly and fairly with any person taking part or referred to in a programme. As a general principle, the Authority considers that any programme in which an accuser alleges that an identified person has committed serious but unspecified and unsubstantiated criminal offences, is likely to be inherently unfair to the accused. It also notes that each of the complainants were named by Mr Muir during the item.
 Further, the Authority points out that PCFM cannot abrogate its responsibilities to deal with people justly and fairly by its host making comments like “…I stress they [Mr Muir’s views] are not the views of myself or 97.5”. The onus is on the broadcaster to ensure that any item it broadcasts complies with all the standards set out in the Radio Code of Broadcasting Practice.
 The Authority considers that the statements and allegations made by Mr Muir, including allegations of corruption and other illegal acts, went far beyond acceptable comment on political activity. In the Authority’s view, the host gave Mr Muir a platform to launch a personal attack on the people he referred to, and made no attempt to challenge what he was saying.
 The Authority notes that the police declined to conduct any inquiry into the matters alleged by Mr Muir, and have not laid charges against the individuals named in the programme. It finds that the information supplied by the broadcaster does not substantiate Mr Muir’s allegations of illegal behaviour by those people he named in the item.
 Accordingly, the Authority considers that by allowing Mr Muir to make serious unproven allegations about named individuals the broadcaster treated those people unfairly. The Authority upholds the complaint that the item breached Principle 6 (fairness).
Principle 4 (balance)
 Principle 4 requires that when controversial issues of public importance are discussed, reasonable efforts are made, or reasonable opportunities are given, to present significant points of view either in the same programme or in other programmes within the period of current interest.
 In the Authority’s view, the issue of whether public officials acted dishonestly and illegally is a controversial issue of public importance as envisaged by the standard, and that the item discussed that controversial issue.
 The broadcaster has argued that it has met its obligations under the standards by distancing itself from the statements made by Mr Muir. It maintained that as the host had not expressed any opinion on Mr Muir’s “strongly worded opinions”, he had been “absolutely neutral”. PCFM contended that as “the microphone is always open for anyone wanting to make a comment”, any one of the complainants could have called the station and rebutted Mr Muir’s allegations. It said that only one, Mr McLean, had called the station during the 26 July interview with Mr Muir, and on that occasion the host had suggested that Mr McLean get back to him when convenient. However, the broadcaster said, apart from coming into the station to pick up a recording of the interview, Mr McLean had not made contact since. In the broadcaster’s view, any hurt the complainants’ may have suffered lay squarely at their feet.
 The Authority disagrees. It reminds PCFM that its obligations under the balance standard go beyond merely issuing a general invitation to “anyone wanting to make a comment”.
 Having allowed Mr Muir nearly 15 minutes to air his views on a controversial issue – during an interview in which the host seemed at times to reinforce rather than challenge Mr Muir’s views – the Authority considers that the broadcaster was required to make genuine efforts to seek other significant perspectives on the issues raised by Mr Muir. Further, it notes that the interview was repeated in full several days after the first broadcast, and is aware that Mr Muir repeated many of his allegations in a subsequent broadcast. The broadcaster did not approach any of the people named in the broadcast to comment on the allegations at any stage. In light of this, the Authority finds that PCFM failed to make reasonable efforts to present significant points of view on the controversial issue under discussion.
 Accordingly, the Authority upholds the complaint that the broadcast breached Principle 4 (balance).
Principle 1 (good taste and decency)
 The complainant argued that the item was in breach of Principle 1 because it “attacked the integrity of those he [Mr Muir] accused and the offices they held”. The Authority finds that the good taste and decency standard is not relevant to this complaint. It notes, however, that Mr Henry’s concerns in this respect have already been addressed in its consideration of Principle 5 (fairness).
 Accordingly, the Authority declines to uphold the Principle 1 complaint.
Principle 6 (accuracy)
 The complainants have argued that Mr Muir’s allegations that members of the Mercury Bay Community Board and the Thames Coromandel District Council had acted inappropriately and dishonestly were inaccurate. Irrespective of whether Mr Muir was making statements of fact on the programme, or merely expressing his opinion about the matters, the Authority considers that it does not have jurisdiction to determine this part of the accuracy complaint.
 It is the function of a Court, not the Authority, to determine whether someone has committed a criminal offence. Because this is not a matter of broadcasting standards but a matter for the criminal court, the Authority declines to determine the accuracy complaint under section 11(b) of the Broadcasting Act 1989.
Principle 7 (social responsibility)
 Principle 7 requires that in programmes and their presentation, broadcasters are required to be socially responsible. The complainant argued that the item was socially irresponsible because it denigrated, and could have affected the public’s perception of the honesty and integrity of, the people named. The Authority considers that the complainant’s concerns in this respect have been adequately addressed in its consideration of Principle 5 (fairness). Accordingly, it subsumes the social responsibility complaint into its consideration of Principle 5.
 The complainant also argued that the interview with Mr Muir amounted to “electioneering”, and was therefore socially irresponsible. The Authority agrees with the broadcaster that the interview did not constitute electioneering, and that Principle 7 is not relevant to this aspect of the complaint. It declines to uphold this part of the complaint.
For the above reasons the Authority upholds the complaint that the broadcast of an item on Pacific Coast FM on 26 July 2007 and repeated on 29 July 2007 breached Principles 4 and 5 of the Radio Code of Broadcasting Practice.
 Having upheld a complaint, the Authority may make orders under sections 13 and 16 of the Broadcasting Act 1989. It invited submissions on orders from the parties.
 On behalf of the complainants, Mr Henry submitted that the Authority should order PCFM to broadcast an apology and contended that this should be broadcast once every day for a week from Monday to Friday between 7.30am and 9am.
 Mr Henry also sought $1,350 to reimburse his clients’ legal costs. He submitted that costs to the Crown should be ordered in the amount of $3,000 to emphasise the seriousness of the Authority’s findings.
 In response, Mr Brown submitted that due to the time that would have elapsed between the original broadcast complained about and the Authority’s orders, an apology would be inappropriate. He contended that this was a minor matter and that Mr Henry’s submission seeking $3,000 costs to the Crown was excessive and vexatious. He also submitted that he should not have to pay the complainants’ legal fees.
 The broadcaster also made additional submissions to the Authority relating to the accuracy of the statements made by Mr Muir in the programme, and maintaining that he had made at least five requests to the complainants for them to come to his station and respond to the allegations.
 Noting that Mr Brown had previously referred to only one invitation to Mr McClean to come and discuss the issues at PCFM, the Authority asked Mr Brown to give specific details of the other requests he had made (including the manner of invitation and the dates and times of the requests). Mr Brown responded that he had said on “countless occasions” that his “mic is always open”, but gave no further details of requests that he had made to the complainants to come on air. In these circumstances, the Authority considers that Mr Brown has provided no new information which would alter its findings.
Authority’s Decision on Orders
 The Authority finds that it is appropriate to order PCFM to broadcast a statement summarising the upheld aspects of its decision. The Authority’s usual practice is to order the broadcast of a statement on only one occasion, and no special circumstances exist in this case that would lead the Authority to depart from this practice.
 The Authority declines to order that an apology be made by PCFM to the complainants. Although the allegations made against the complainants during the interview were serious in terms of their professional reputations, the Authority has ordered apologies only rarely and in exceptional circumstances. It does not consider that an apology is warranted in this case.
 Mr Henry submitted that an award of $1,350 to reimburse his clients’ legal costs would be appropriate. In determining whether to order a contribution towards legal costs, the Authority has taken into account the relatively straightforward complaints process. However, the Authority considers that it was not unreasonable in the circumstances for the complainants to seek legal advice in respect of both making the complaint and making submissions to the Authority.
 The Authority’s policy is that costs awards will usually be in the range of one-third of costs reasonably incurred. It finds that the sum of $1,350 is a reasonable amount considering the time and effort that had to be applied by Mr Henry to progress the complaint. This amount may be adjusted upwards or downwards depending on the circumstances.
 The Authority notes that PCFM did not comply with its statutory obligation to respond to the formal complaint, which resulted in Mr Henry referring the complaint to the Authority. The broadcaster also made additional unhelpful submissions to the Authority which prolonged the complaints process. The Authority considers an appropriate award in this case to be two-thirds of the complainants’ legal costs, i.e. $900.
Bill of Rights
 The Authority records that it has given full weight to the provisions of the New Zealand Bill of Rights Act 1990 and taken into account all the circumstances of the complaint in reaching its determination and in making the above orders. The Authority considers that its exercise of powers on this occasion is consistent with the New Zealand Bill of Rights Act’s requirement that limits on freedom of expression must be prescribed by law, be reasonable, and be demonstrably justifiable in a free and democratic society.
The Authority makes the following orders pursuant to sections 13 and 16 of the Broadcasting Act 1989:
1. Pursuant to section 13(1)(a) of the Act, the Authority orders Pacific Coast FM to broadcast a statement approved by the Authority. That statement shall:
- be broadcast within one month of the date of this decision at a time to be approved by the Authority
- contain a comprehensive summary of the upheld aspects of the Authority’s decision.
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 of the manner in which the above order has been complied with.
3. Pursuant to section 16(1) of the Act, the Authority orders Pacific Coast FM to pay to the complainants costs in the amount of $900, within one month of the date of this decision.
The orders for costs shall be enforceable in the Wellington District Court.
Signed for and on behalf of the Authority
26 May 2008
The following correspondence was received and considered by the Authority when it determined this complaint:
1. Alan Henry’s formal complaint – 16 August 2007
2. Mr Henry’s referral to the Authority – 27 September 2007
3. Pacific Coast FM’s response to the Authority – 25 October 2007
4. Mr Henry’s final comment – 21 November 2007
5. Mr Henry’s submissions as to costs – 5 March 2008
6. Pacific Coast FM’s submissions as to costs – 19 March 2008
7. Pacific Coast FM’s further submissions – 2 April 2008
8. Pacific Coast FM’s response to the Authority’s request for further information – 10 April 2008
9. Mr Henry’s comment on Pacific Coast FM’s response to the Authority – 18 April 2008