Mitchell and Wolf and The Radio Network Ltd - 2004-113, 2004-114
- Joanne Morris (Chair)
- Diane Musgrave
- Tapu Misa
- Paul France
- David Mitchell
- Graham Wolf
ProgrammePaul Holmes Breakfast
BroadcasterThe Radio Network Ltd # 2
Complaints under section 8(1)(a) of the Broadcasting Act 1989
Newstalk ZB – Paul Holmes Breakfast – Hon Tariana Turia called a “confused bag of lard” by host – also accused of being a bully and “all mouth” – allegedly offensive, encouraged denigration, unbalanced and partial
Principle 1 and Guideline 1a (good taste and decency) – comments not indecent – questionable taste – context – not upheld
Principle 4 (balance) – not applicable to editorial comment – not upheld
Principle 6 (accuracy) – editorial comment not required to be impartial – not upheld
Principle 7 and Guideline 7a (discrimination) – comments focused on individual, not group – not upheld
Broadcast comments raised issue of fairness, and broadcaster acknowledged probable unfairness. However, neither complainant raised the fairness standard either explicitly or implicitly in original complaints. Authority unable to assess a complaint on standard not raised in original complaints.
This headnote does not form part of the decision.
 The host of Paul Holmes Breakfast (Paul Holmes) referred to a government Minister, the Hon Tariana Turia, during an editorial piece broadcast on Newstalk ZB at about 11.55am on 28 April 2004. The comments related to the Minister’s perceived indecision on the foreshore and seabed legislation which was expected to be introduced into Parliament shortly.
 During the piece, the host described the Minister as a “confused bag of lard”, as a bully who folded under pressure and who did not have the “guts to vote”, and as being “all mouth and no trousers, all talk and no walk”. As well he described her as a “complete fool”.
 David Mitchell complained to The Radio Network Ltd (TRN), the broadcaster, that while there was a place for the exercise of robust and strong opinions in editorials, a derogatory reference to size and physique was not acceptable. Further, he wrote, there was no place for a reference to cowardice and such comments were defamatory as they lowered the reputation of the person referred to.
 In addition, Mr Mitchell considered the comments to be reckless and irresponsible, unbalanced and partial, and argued that they had encouraged the denigration of the Minister. Mr Mitchell nominated specific standards in the Television Code of Broadcasting Practice. The equivalent Principles and guidelines in the Radio Code are Principle 4, Principle 6 and Guideline 6d, and Principle 7 and Guideline 7a. They provide:
Principle 4 Balance
In 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 6 Accuracy
In the preparation and presentation of news and current affairs programmes, broadcasters are required to be truthful and accurate on points of fact.
Broadcasters shall ensure that the editorial independence and integrity of news and current affairs is maintained.
Principle 7 Discrimination
In programmes and their presentation, broadcasters are required to be socially responsible.
Broadcasters will not portray people in a manner which encourages denigration of or discrimination against any section of the community on account of gender, race, age, disability, occupational status, sexual orientation; or as the consequence of legitimate expression of religious, cultural or political beliefs. This requirement does not extend to prevent the broadcast of material which is:
i) factual; or
ii) a genuine expression of serious comment, analysis or opinion; or
iii) by way of legitimate humour or satire.
 Mr Mitchell contended that the defence of genuine opinion contained in Guideline 7a was not available given the degree of offensiveness. In regard to the allegation regarding cowardice, Mr Mitchell pointed out that the Minister had since explained her position which led to her resignation from Parliament. That was not, he noted, the action of a coward. Seeking an apology, Mr Mitchell wrote:
[The host’s] comments have to be seen in their context, a time in our country when it seems fashionable by some in prominent positions to do some “Maori bashing”. Since National leader Don Brash’s Orewa speech, there have been numerous instances of attacks on Maori in the media and [the host’s] comments are only the latest and most offensive. It is very sad to see someone in a position of privilege and power abusing those privileges in this way and to see your network broadcasting offensive and racist comments.
 Mr Wolf complained that the comments were “most offensive” and encouraged the denigration of the Minister, and he sought the dismissal of the host. He referred to a number of newspapers where the comments had been described variously as unpleasant, unnecessary and unprofessional. He cited Principle 1 and Guideline 1a and Principle 7 and Guideline 7a of the Radio Code. Principle 7 is recorded above and Principle 1 reads:
In programmes and their presentation, broadcasters are required to maintain standards which are consistent with the observance of good taste and decency.
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.
 In view of the matters raised, TRN assessed the complaints under what it described as the relevant standards in the Radio Code of Broadcasting Practice: They were Principle 1 and Guideline 1a, and Principle 7 and Guideline 7a.
Broadcaster's Responses to the Complainants
 TRN acknowledged to both complainants that the “hard-hitting” comments expressed annoyance at the Minister and had been made after some months of indecision on the Minister’s part which, it contended, had frustrated both the media and her political colleagues.
 Under Principle 1, TRN described the “bag of lard” comment as “passable” given that politicians were accountable to their constituents. It added that Mrs Turia appeared later during the week on the Holmes television show at which time the host had apologised to her for his comments. Since then, it added, Mrs Turia had appeared twice on Paul Holmes Breakfast and an amicable relationship existed between them despite their political disagreements.
 TRN declined to uphold the complaints under Principle 7, noting that the comments were the expression of genuine opinion, and that strong attacks on politicians did not necessarily mean that the broadcast encouraged discrimination or denigration. It stated that the host himself had been the subject of strong attacks.
Referrals to the Authority
 Arguing that the “genuinely-held opinion” defence was no defence to making derogatory personal comments, Mr Mitchell maintained that the broadcast breached the standards referred to in para . He equated the comments on this occasion with those made in 2003 when the host described the United Nations Secretary-General (Kofi Annan) as a “cheeky darkie”.
 Moreover, he wrote, the comments were made while Mrs Turia was still considering her position and, in reaching her decision, the Minister had proved the comments wrong. He repeated his acknowledgement that strong editorials were acceptable, but comments about physical appearance were unacceptable and “particularly offensive”.
 In response to TRN’s acknowledgement that the “bag of lard” comment was acceptable as it was directed at a politician, Mr Mitchell said it was unacceptable regardless at whom it was directed. He questioned who would find the comments “passable”. Noting that the host had apologised to the Minister, Mr Mitchell contended that the apology should have been carried in the same medium as the original comment. He expressed his disappointment at the processes TRN had in place to deal with complaints. He considered that the broadcaster should have apologised to the Minister, and the host should have been called to account.
 Mr Wolf argued that the host’s comment was another in a series of unprofessional remarks that the host had made over the years. With regard to the comments on this occasion, Mr Wolf did not accept the argument that the host could make questionable remarks because he too was the object of such comments. Mr Wolf sought more information on the apology made by the host to the Minister, and queried whether it was in fact “damage control”. He then objected to the accuracy of some of the observations contained in the editorial piece.
 Mr Wolf noted that he disagreed with TRN’s approach to his complaints, its interpretation of the standards, and said he was complaining specifically about the host’s lack of professionalism.
Broadcaster’s Responses to the Authority
 In response to the referral from Mr Mitchell, TRN suggested that the Authority should put to one side his comments about defamation as that was not a matter of broadcasting standards. It maintained that Principles 1 and 7 were the appropriate standards and it denied that they were breached by the “bag of lard” comment.
 As for Mr Wolf’s referral, TRN described Paul Holmes Breakfast as a “free-wheeling, robust, opinionated and entertaining show” and said that the audience was familiar with the host’s method of “pricking balloons”. In view of the Minister’s obfuscation, it added, she was a suitable target for comment. Reiterating the contention that the complaint should not be upheld, TRN wrote:
This was tough, but in the context of the broadcast it was passable.
Complainants’ Final Comments
 Mr Mitchell acknowledged that, in his complaint to the broadcaster, he had referred to standards in the Television Code of Broadcasting Practice. He accepted that he should have referred to the Radio Code. He then listed the provisions in the Radio Code which he considered were relevant and they covered good taste and decency, fairness, correcting errors and discrimination. Whereas good taste and decency (principle 1) and discrimination (Principle 7 and Guideline 7a) have been addressed above, Mr Mitchell raised the other two matters for the first time. The Principles, he contended, which were now applicable were:
In programmes and their presentation, broadcasters are required to deal justly and fairly with any person taking part or referred to.
 Furthermore, Mr Mitchell wrote, having listened again to the item he now contended that the item contained a further inaccuracy when it was said that the Minister only wanted to retain the ministerial role “because of the cars and the perks”.
 In response to TRN’s contention that the Authority’s function did not include evaluating allegations that an item was defamatory, Mr Mitchell said that he used the term because of his familiarity with it and he maintained that it equated with the concepts of being dealt with “justly and fairly” in Principle 5.
 In conclusion, he expressed disappointment with TRN’s attitude as it appeared to treat his complaint as “minor or insignificant”. The broadcast, he argued, merited a correction and an apology.
 In his final comment, Mr Wolf referred to a recent article in the magazine “Metro” which reported that the Broadcasting Standards Authority had received a total of 145 formal complaints in regard to broadcasts involving the host. He also questioned the authenticity of the host’s apology to Mrs Turia.
 Mr Wolf acknowledged that the host “pricked balloons”, but he insisted that there were limits and he contended that the “bag of lard” comment violated the standards. Furthermore, he posed the question that if the comment did not breach the standard, why had it been necessary for the host to apologise to Mrs Turia at the first available opportunity.
 Acknowledging that the host’s comments were usually harmless and often entertaining, Mr Wolf again argued that the comment on this occasion breached the standards. The host, he concluded, had failed to learn from previous upheld complaints.
 The members of the Authority have listened to a tape of the broadcast complained about and have read the correspondence listed in the Appendix. The Authority determines the complaints without a formal hearing.
 TRN assessed both complaints under Principle 1, and Principle 7 and Guideline 7a. It contended that these provisions “best covered” the issues made by the complainants.
Principle 1 – Good Taste and Decency
 When the Authority determines a complaint which contends that a broadcast has contravened the good taste and decency standard, it is required to take into account the context of the broadcast complained about. The expressions used about the Minister included “a confused bag of lard”, a bully who folded under pressure, and “a complete fool.”
 The Authority considers the following contextual matters are relevant. It acknowledges that the comments were made about a public figure whose possible action on the foreshore and seabed issue was then a matter of high public profile. The Authority also accepts that the comments were made by way of editorial comment by a broadcaster who puts his views, which are sometimes controversial, in a forthright manner. Moreover, since the broadcast complained about, Mrs Turia had been interviewed on the Breakfast programme and on the host’s television show, during which he had apologised to her. Furthermore, the Authority considers that while the remarks were personally abusive and unfair to Mrs Turia, that does not necessarily put them beyond the bounds of good taste and decency, which standard is more aptly applied to material of a sexual or profane nature. Taking into account all these matters, the Authority finds that the comments did not breach Principle 1.
Principle 7 – Discrimination
 The Authority considers that Principle 7 and Guideline 7a are not applicable. Guideline 7a is concerned with encouraging denigration or discrimination against a number of societal groups. The comments complained about on this occasion were directed at one named person, and she was not singled out because of any representative role she might have had at the time. On that basis, the Authority considers Principle 7 is not applicable. This aspect of the complaint is not upheld.
Principle 4 – Balance and Principle 6 – Accuracy
 As it is accepted by all the parties that the comments complained about were made as editorial comment, the Authority agrees with TRN that the requirements for balance (Principle 4) and editorial independence (Principle 6 and Guideline 6d) are not applicable. Editorial opinion is specifically advanced for the listener, in the case of radio, to accept or reject. Editorial opinion in itself discloses the broadcaster’s independence.
Principle 5 – Fairness
 The Authority notes that Principle 5 was raised by Mr Mitchell in his final comment when, he contended, it had been an aspect of his complaint to TRN that the broadcast was defamatory.
 The Authority’s task in the Broadcasting Act is to review the broadcaster’s decision. On this occasion, neither complainant raised the standards issue of fairness, either explicitly or implicitly, in their complaints to the broadcaster. The Authority is unable to nominate standards which it might consider to be relevant if the complainant has not done so, and, moreover, it is unable to accept a referral which raises a new standard which was not raised implicitly or explicitly in the initial complaint.
 Under the Broadcasting Act, the Authority is unable to accept Mr Mitchell’s complaint that the broadcast was unfair as he did not raise this standard when he made his original complaint. It declines to accept the fairness complaint.
 However, in the Authority’s opinion, the comments raised the issue of fairness. It notes that TRN acknowledged that the “bag of lard” comment “may have been unfair”. The Authority believes that it was in fact unfair to apply that phrase to the Minister.
For the above reasons, the Authority declines to uphold the complaint.
Signed for and on behalf of the Authority
2 September 2004
The following correspondence was received and considered by the Authority when it determined these complaints:
- David Mitchell’s Formal Complaint to The Radio Network Ltd – 4 May 2004
- TRN’s Response to the Formal Complaint – 21 May 2004
- Mr Mitchell’s Referral to the Broadcasting Standards Authority – 12 June 2004
- TRN’s Response to the Authority – 23 June 2004
- Mr Mitchell’s final Comment – 8 July 2004
- Graham Wolf’s Formal Complaint to The Radio Network Ltd – 7 May 2004
- TRN’s Response to the Formal Complaint – 19 May 2004
- Mr Wolf’s Referral to the Broadcasting Standards Authority – 9 June 2004
- TRN’s Response to the Authority – 24 June 2004
- Mr Wolf’s Final Comment – 7 July 2004