BSA Decisions Ngā Whakatau a te Mana Whanonga Kaipāho

Complaint under section 8(1C) of the Broadcasting Act 1989
APNA talkback – interview with managing director of Moshims Discount House Ltd about allegations that expired food items were sent as aid to flood victims in Fiji – after interview, a listener phoned in alleging that Discount House sold food that had passed its expiry date – allegedly in breach of accuracy, fairness, discrimination and denigration, and responsible programming standards

Findings
Standard 5 (accuracy) – broadcast not a factual programme or current affairs – comprised of opinion – not upheld

Standard 6 (fairness) – complainant given adequate opportunity to respond to claims – complainant and his company treated fairly – not upheld

Standard 7 (discrimination and denigration) – not applicable – not upheld

Standard 8 (responsible programming) – not applicable – not upheld

This headnote does not form part of the decision.

Broadcast

[1]  On the afternoon of 22 February 2009, APNA 990 broadcast an interview with Mohammed Khan, the managing director of Moshims Discount House Ltd (Discount House) and a spokesperson for the Auckland Muslim community, about food and other aid that had been collected and sent to flood victims in Fiji. Mr Khan responded to questions concerning allegations that some of the food that had been sent as aid had passed its expiry date.

[2]  On the afternoon of 22 February 2009, APNA 990 broadcast an interview with Mohammed Khan, the managing director of Moshims Discount House Ltd (Discount House) and a spokesperson for the Auckland Muslim community, about food and other aid that had been collected and sent to flood victims in Fiji. Mr Khan responded to questions concerning allegations that some of the food that had been sent as aid had passed its expiry date.

[3]  After the interview, the talkback lines were opened up and a caller made allegations that some of the food items being sold by Discount House were date "expired" and that the store stocked non-halal products.

[4]  The host then stated that the caller was "becoming personal" and that he had been given a chance to speak. The host said that the issue under discussion was about expired food items being sent to Fiji and finding out who was responsible for packing the containers. The caller stated that he was not "taking anyone's side", and that there should be an investigation into how the expired items were sent.

[5]  Another caller then criticised the comments of the previous caller, saying that he should have raised his concerns if he had seen that expired items were being sold at Moshims. The caller stated that he thought selling expired goods was illegal.

[6]  A third caller stated that he had seen expired goods being sold at Moshims in Otahuhu.

Complaint

[7]  Through its lawyers, Moshims Discount House Ltd (Discount House) made a formal complaint to APNA Networks Ltd (APNA), the broadcaster, alleging that the broadcast of the first caller’s allegations had breached broadcasting standards relating to accuracy, fairness, discrimination and denigration, and responsible programming.

[8]  The complainant said that Mr Khan had been interviewed as "a spokesperson for the general community who were sending items to Fiji to aid flood relief", and not "specifically in his commercial capacity" as manager of Discount House. It stated that Mr Khan was a leading member of the Muslim community and noted that it was not just Mr Khan's business that was sending aid relief, but the general community.

[9]  The complainant noted that after Mr Khan was interviewed, APNA broadcast a caller "who purported to be a Muslim", and who made statements regarding the products sold by Discount House. It argued that the caller had been allowed to make the untrue statement that Discount House sold "date expired goods from its premises, with the implication that the items sent to Fiji to assist flood victims was of a similar (expired) quality".

[10]  The complainant contended that, "There were further implications that [Discount House] was simply 'dumping' goods it could no longer sell in New Zealand, and that flood victims in Fiji would be receiving, in effect, unhealthy or decomposing food".

[11]  With respect to accuracy, the complainant contended that the caller's comments related to a private commercial matter and not to the subject of Mr Khan's interview, which was the sending of aid relief to Fiji. It argued that it was inaccurate and misleading of APNA to "accept and broadcast such a call unrelated to the topic of the interview, to allow the caller to state that [Discount House] sells expired product (which it does not) and that aid relief consisted of expired product (which it did not)".

[12]  Turning to fairness, the complainant argued that APNA had treated the business and its manager unfairly by allowing the caller to make those comments on air.

[13]  Dealing with Standard 7 (discrimination and denigration), the complainant stated that Mr Khan "was a spokesman for the general community" and "a Muslim of standing in the Muslim community". It believed that the caller, who it said purported to be a Muslim, was in fact not a Muslim, but was from another Indian community, and had "competing business associations". It argued that "allowing the caller to purport to make a statement as a Muslim, when [Discount House] believes [the] station was aware the caller was not, amounted to a form of encouragement of discord between two Indian communities".

[14]  The complainant contended that the broadcaster had allowed a commercial competitor to make harmful remarks about the products sold by Discount House and argued that APNA had been socially irresponsible in broadcasting the caller’s comments.

Standards

[15]  The complainant nominated Standards 5, 6, 7 and 8 of the Radio Code of Broadcasting Practice. These provide:

Standard 5 Accuracy

Broadcasters should make reasonable efforts to ensure that news, current affairs and factual programming:

• is accurate in relation to all material points of fact; and/or
• does not mislead.

Standard 6 Fairness

Broadcasters should deal fairly with any person or organisation taking part or referred to.

Standard 7 Discrimination and Denigration

Broadcasters should not encourage discrimination against, or denigration of, 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.

Standard 8 Responsible Programming

Broadcasters should ensure that programme information and content is socially responsible.

Referral to the Authority

[16]  Having not received a response from the broadcaster within the statutory timeframe, the complainant referred its complaint to the Authority under section 8(1C) of the Broadcasting Act 1989.

Broadcaster's Response to the Authority

[17]  APNA stated that Mr Khan had not been interviewed in his personal capacity, but as a representative from a competing radio station called Radio Tarana. It said that it had "heard rumours of expired food items being sent to Fiji", and had given its competitive rivals, Radio Tarana, an opportunity to comment on the issue. It explained that some members of the public had been alleging that APNA and Radio Tarana had been involved in expired food items being sent to Fiji's flood victims. Further, it said that it understood Mr Khan and Discount House had assisted in supplying a substantial amount of food to the Fiji flood victims.

[18]  The broadcaster said that, following Mr Khan's interview, its radio host opened the lines to take calls and that one of the callers, while discussing allegations of expired food being sent to Fiji, made comments critical of Mr Khan's business and claimed that Discount House was both selling expired food and sending it to Fiji as aid.

[19]  APNA argued that, although Mr Khan found the caller’s comments about his business inaccurate and unfair, the caller was expressing his opinion about the issue in contention. It pointed out that its host "did mention to the caller that he did not want the caller to get personal on the matter and brought him in line with the issue that was being discussed".

[20]  The broadcaster noted that the caller had not sworn or used obscene language and contended that in the "spur of the moment" the caller had "expressed his opinion" about Discount House. APNA argued it "had already given [Mr Khan] the opportunity to defend his business and [that] he came voluntarily on air for the interview". It considered that "if Mr Khan had felt so offended he should have called back to clarify his position".

[21]  APNA stated, "We have no knowledge of the details of the caller, who he was, what religion he follows and what competing business interest he has against Mr Khan". It argued that it could not be expected to ascertain a caller’s religion before putting the person on air.

[22]  The broadcaster contended that the forum of talkback radio allowed for people to express their opinions and that the caller was entitled to express his opinion. It concluded that the item had not breached broadcasting standards.

Authority's Determination

[23]  The members of the Authority have read a transcript of the broadcast complained about, translated into English, and have read the correspondence listed in the Appendix. The Authority determines the complaint without a formal hearing.

Standard 5 (accuracy)

[24]  Standard 5 (accuracy), only applies to news, current affairs and factual programming. The Authority must first determine whether this talkback programme fell into one of these categories.

[25]  The only situation in which the Authority has found that a talkback programme would amount to a current affairs or factual programme is when a host makes unqualified statements of fact that set the basis for the discussion (see, for example, Decision Nos 2006-030 and 2006-086). On this occasion, the Authority considers that the remarks made by the host, the interviewee and subsequent callers were all based around opinion and speculation, as opposed to being statements of fact. The broadcast amounted to a public forum in which members of the community voiced their opinions on various issues including allegations that expired food products ended up in charitable aid packages sent to flood victims in Fiji.

[26]  While the broadcast purported to deal with a serious matter, the style and content of the discussions it engendered meant that it did not constitute a factual programme or current affairs for the purposes of Standard 5. Accordingly, the Authority finds that the accuracy standard did not apply to this broadcast, and it declines to uphold this part of the complaint.

Standard 6 (fairness)

[27]  The fairness standard requires broadcasters to deal justly and fairly with any person taking part or referred to in a programme.

[28]  The Authority notes that the host put the question to Mr Khan, "With how much certainty can you say that the supplies you sent to Fiji did not include expired items?" In response to that question and similar ones, Mr Khan explained that he had could not guarantee that expired items were not sent in the 25 containers of aid because hundreds of people had contributed items. He went on to say that there was no evidence that the alleged expired items came from him or his company and he made it very clear that he believed that they had not.

[29]  In the Authority's view, Mr Khan was given an adequate opportunity to provide his point of view and respond to any implication that his company was responsible for the allegedly expired food products in the aid packages.

[30]  With respect to two callers' comments that Moshims Discount House stocked expired food, the Authority considers that listeners would have understood that the comments were purely opinion and that the callers could not offer any proof to support their allegations. The comments were incidental to the main discussion, and the host steered the conversation back to the subject of whether expired items had been sent to Fiji. For these reasons, the Authority finds that this point did not require a response from Mr Khan in the interests of fairness.

[31]  The Authority concludes that both Mr Khan and his company were treated fairly and it declines to uphold the complaint that the broadcast breached Standard 6.

Standard 7 (discrimination and denigration)

[32]  In the Authority's view, the broadcast did not contain any material that could be considered to have encouraged denigration of or discrimination against a section of the community. The discussion had nothing to do with a particular religion or ethnic group, but was focused on claims about allegedly expired goods being sent to Fiji.

[33]  The Authority finds that Standard 7 does not apply in the circumstances and it declines to uphold the complaint that the broadcast breached standards relating to discrimination and denigration.

Standard 8 (responsible programming)

[34]  Standard 8 states that broadcasters are responsible for ensuring that programme information and content is socially responsible. The standard relates to matters such as ensuring a clear distinction between programming and advertising material, the use of warnings where content may disturb, and collusion between broadcasters and contestants during competitions.

[35]  The Authority finds that the responsible programming standard is not applicable in the circumstances, and it declines to uphold the complaint that the broadcast breached Standard 8.

For the above reasons the Authority declines to uphold the complaint.

Signed for and on behalf of the Authority

Joanne Morris
Chair
19 August 2009

Appendix

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

1.        Moshims Discount House Ltd's formal complaint – 19 March 2009
2.        Discount House's referral to the Authority – 6 May 2009
3.        APNA's response to the Authority – 25 May 2009